Law Commons^™

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost, was anti-competitive. …

Anti-Monopoly Law In China: A Socialist Market Economy Wrestles With Its Antitrust Regime, Jared A. Berry

Brigham Young University International Law & Management Review

No abstract provided.

The Dual Purpose Of The American Jobs Creation Act Of 2004, Dennis J. Kokenos

ExpressO

The American Jobs Creation Act of 2004 claims to help bring offshore investments back to the United States. In reality, the AJCA does much more. The AJCA of 2004 makes adjustments to the U.S. tax code which helps bring the U.S. in line with existing international trade obligations as well as stimulating the U.S economy.

Wto Dispute Settlement And Competition Law: Views From The Perspective Of The Appellate Body's Experience, Claus-Dieter Ehlermann

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The current discussions on a future framework for competition policy within the World Trade Organization ("WTO")have revealed reservations against the full application of the WTO dispute settlement system to such a framework. The current dispute settlement system of the WTO is one of the results of the Uruguay Round negotiations. For an international agreement of nearly universal scope, this system is unique in its obligatory and quasi-automatic character. In general, complaints can be brought to the WTO against national laws which fail to comply with WTO obligations and also against a WTO-inconsistent application of national laws in individual cases. The …

Worst Us Antitrust Decisions...Ever - Part Two, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Last month we invited a panel of three US lawyers to discuss some of the worst antitrust decisions of all time. We now conclude that series, with the second set of candidates for the 'Hall of Shame'. Read the opinions carefully--we'll be picking the worst of the worst in a website survey next month.

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

All Faculty Scholarship

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …

How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande

All Faculty Scholarship

This Article examines whether the current penalties in the United States Sentencing Guidelines are set at the appropriate levels to deter cartels optimally The authors analyze two data sets to determine how high on average cartels raise prices. The first consists of every published scholarly economic study of the effects of cartels on prices in individual cases. The second consists of every final verdict in a US. antitrust case in which a neutral finder of fact reported collusive overcharges. They report average overcharges of 49% and 31% for the two data sets, and median overcharges of 25% and 22%. They …

Administrative Law Judge Upholds Ftc Complaint Ordering Evanston Northwesternhealthcare Corporation To Unwind Five-Year-Old Acquisition , James Lowe, Alexander Krulic

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On October 21, 2005, the Federal Trade Commission (FTC) announced that Administrative Law Judge Stephen J. McGuire had ordered Evanston Northwestern Healthcare Corporation (ENH) to divest Highland Park Hospital, located in a Chicago suburb. (The decision can be found at http://www.ftc. gov/os/adjpro/d9315/051021idtextversion. pdf.) ENH had acquired Highland Park five years ago for $200 million. In an administrative complaint issued in February 2004, the FTC alleged that the acquisition had resulted in "substantially lessened competition" and higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations. In upholding part of the complaint, Judge …

Clarett V. National Football League: Defining The Non-Statutory Labor Exception To Antitrust Law As It Pertains To Restraints Primarily Focused In Labor Markets And Restraints Primarily Focused In Business Markets, Ronald Terk Sia

The University of New Hampshire Law Review

[Excerpt] “Contemporary sports have seen an influx of young talent opting for a chance at playing in the big leagues earlier at the expense of obtaining higher education. Many dream of playing professional sports—dreams often prohibited by player eligibility rules. In situations where the restraints are not argued to have been protected by non-statutory labor exception, antitrust law has been seen to set its talons into eligibility rules. […]

Federal antitrust law and national labor law set forth two conflicting policies that have created a periodic drama for sports fans concerned that their favorite sports will suffer a cataclysmic court …

Balancing Deterrence, Comity Considerations, And Judicial Efficiency: The Use Of The D.C. Circuit's Proximate Cause Standards For Determining Subject Matter Jurisdiction Over Extraterritorial Antitrust Cases, Stephanie Casy

American University Law Review

No abstract provided.

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry giants, …

Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher

ExpressO

This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO …

Understanding The Solution For Microsoft, Ivo T. Gico

Ivo Teixeira Gico Jr.

Nesse artigo, o autor examinou a solução do caso da Microsoft, tentando responder as seguintes perguntas: Seria a Microsoft responsável pelo monopólio do mercado de sistemas operacionais e pela vinculação ilegal no mercado de navegadores? Qual seria a solução menos drástica e intrusiva que poderia solucionar todas as acusações? Teria o Judiciário encontrado uma solução equilibrada para criar a competção sem destruir a Microsoft? Que abordagem seria melhor?

In this paper, the author examines the issue of relief in the Microsoft case, trying to answer the following questions: Is Microsoft liable for monopolization on the operating system market and illegal …

Deadly Discounts: How Reimportation Jeopardizes The Safety Of The U.S. Pharmaceutical Drug Supply Under The Federal Trade Commission Amendment, Nicole C. Bates

ExpressO

The amendment to a Federal Trade Commission (FTC) reauthorization bill, previously introduced as Senate Bill 334 (S.334) Pharmaceutical Market Access and Drug Safety Act of 2005 allows for the reimportation of prescription drugs into the United States from approximately 25 countries, including Canada via Internet pharmacies. There are no guarantees that the internet websites advertising as Canadian pharmacies are legitimate. The shipping of pharmaceutical drugs occurs through importation, which refers to drugs produced abroad then later shipped to the U.S., or re-importation, a term applied when drugs are produced in the U.S. and exported for sale to foreign countries and …

The Residency Match: Competitive Restraints In An Imperfect World, Kristin Madison

All Faculty Scholarship

Several years ago physicians filed a lawsuit alleging that “the match,” the more than fifty-year-old system by which medical students and other applicants are assigned to medical residency programs, violates Section 1 of the Sherman Act. Last year, without hearings or substantive debate on the issue, Congress found that the match was “highly efficient” and “pro-competitive” and granted a retroactive antitrust exemption for its operation. These seemingly incompatible views invite further analysis of the merits of the residency match from the perspective of public policy. This article considers the arguments of match advocates and critics, evaluating both theoretical models and …

The Comparative Analysis On The Presumption Of Cartel Agreements Which Is Unique In The Korean Cartel Regulation Provision, Woo-Jong Jon

ExpressO

In terms of cartel regulation, Korea has a “presumption of agreement” provision that does not exist in the United States or in the European Union (EU). This provision is Article 19(5) of the Monopoly Regulation and Fair Trade Act (MRFTA). This provision was created for the convenience of enforcement because firms made cartel agreements by more sophisticated methods as the cartel regulation became more intense. Accordingly, in the continental law of Korea the approach of the courts in relation to cartel regulation is somewhat different to the United States. However, in terms of a standard for deciding specifically what to …

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert

Faculty Publications

The Executive Committee of the Association of American Law Schools has adopted a Statement of Good Practices that purports to limit the times when law schools may make offers to hire faculty members at other schools. Schools are generally not to make offers for indefinite appointments to professors on other faculties after March 1, subject to extension for two months with the consent of the incumbent's dean. They also are not to make offers contemplating resignation from a current faculty position more than two weeks following those deadlines. Proceeding on the assumption that the AALS policy, whose express terms are …

Defining Nondiscrimination Under The Law Of The World Trade Organization, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese

Faculty Publications

No abstract provided.

The Transformation Of World Trade, Joost Pauwelyn

Michigan Law Review

This Article contests the traditional view of the evolution of the world trade system. Rather than a unidirectional process of legalization focused exclusively on the system's normative structure, Part I of the Article, "The Explosion of the GATT Club," recounts the transformation from GATT to WTO as a bidirectional interaction between law and politics; in particular, between the system's legal-normative structure and its political, decision making branch Part II of this Article, "The Threat of a WTO Fortress," challenges the view that a choice must be made between politics and law or, put differently, between, on the one hand, democratic …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

My Summer Vacation At The European Commission, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

Among the more than 100 jurisdictions with active competition policy regimes today, the United States has the distinction of starting first, creating the most extensive set of judicial precedents, and possessing the largest and most experienced enforcement institutions. Antitrust institutions in the United States have long stood at the summit on any scale of international prestige and influence in the competition policy field. Yet any such ranking would also undoubtedly indicate that during the last decade or so, the antitrust institutions of the European Union have grown in size and sophistication to the point where they are comparably respected and …

Nepal's Accession To Wto And Nepalese Legislation Required To Give Effect To Wto Covered Agreements, Ramesh Bikram Karky

Theses and Dissertations

Nepal's obligation of bringing its national legislation in conformity with the WTO Covered Agreements is one of the greatest challenges faced by Nepal. Here, for the purpose of our study, the coverage of the WTO Covered Agreements includes the WTO Agreement particularly Article :XVI:4, the Multilateral Agreements on Trade in Goods, General Agreement on Trade in Services and Agreement on Trade-Related Aspects of Intellectual Property Rights.60 This dissertation will focus on Nepal's accession to the WTO and examine Nepalese laws to be revised, amended or enacted to give effect to WTO Covered Agreements. This dissertation is divided into four Chapters …

Copyright And Anti-Trust Law : Public Performance Rights Licensing Of Musical Works Into Audiovisual Media, Christian Seyfert

Theses and Dissertations

This article will explore the question how anti-trust law affects the performing rights societies' (PRS) practice plain the different types and forms of licensing of licensing public performance rights of musical works into audiovisual media. It will, first, set forth the historical development and necessity of PRSs; secondly, define and exublic performance rights; and, thirdly, analyze in detail the historical attempts by the government and by private parties to enforce anti-trust law against the PRSs' system of blanket licensing musical works into audiovisual media.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Discounts And Exclusions, Herbert J. Hovenkamp

All Faculty Scholarship

The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost …

Conglomerating Antitrust Policy By Comparative Example: A Conceptual Analysis Of Merger Regulation In The United States, Japan, And The European Union, Jonathan T. Trexler

Brigham Young University International Law & Management Review

No abstract provided.

Securing American Sovereignty: A Review Of The United States' Relationship With The Wto: Hearing Before The Subcomm. On Federal Financial Management, Government Information, And International Security Of The S. Comm. On Homeland Security And Governmental Affairs, 109th Cong., July 15, 2005 (Statement Of Professor Robert K. Stumberg, Geo. U. L. Center), Robert Stumberg

Testimony Before Congress

No abstract provided.